Secretary for Justice v. Lee Siu Kei
Read the full judgment text of CAAR 4/2005 on BabelCite. This Court of Appeal judgment was delivered on 20 January 2006 before Stuart-Moore VP, Stock JA and McMahon J.
Criminal law – drug trafficking – cannabis (herbal) – sentencing review under s.81A Criminal Procedure Ordinance, Cap. 221 – Detention Centre order imposed for trafficking in 13.02 kilogrammes of herbal cannabis – whether wrong in principle and/or manifestly inadequate – starting point – guilty plea discount – time served in Detention Centre – sentence substituted. The respondent, aged 23, pleaded guilty to trafficking in 13.02 kilogrammes of herbal cannabis found in a rented cubicle together with vacuum-packing and packaging equipment, following his arrest by surveillance officers outside an industrial building in San Po Kong on 27 April 2005. He admitted to having been paid $3,000 to rent the cubicle and $400 per block delivered, working on the instructions of 'Ah Fu' through his 'Sun Yee On' triad associate 'Chi Hung'. He had a prior probation order (December 2001) for two unrelated offences, and was on bail at the time of the current offence for a related cannabis possession offence. The sentencing judge imposed a Detention Centre order without hearing mitigation, indicating that otherwise the respondent faced 4½ years' imprisonment. The Secretary for Justice sought review. Held, allowing the application: a Detention Centre order was wrong in principle for an offence of such gravity, involving a large quantity of drugs supplied on a plainly regular commercial basis, where a term of imprisonment was inevitable barring wholly exceptional circumstances. Under the guidelines in Attorney General v Chan Chi-man [1987] HKLR 221, trafficking in over 9,000 grammes attracts a starting point of 4 years' imprisonment upwards after trial, with adjustment downwards for herbal cannabis to account for its lower THC concentration relative to cannabis resin (as confirmed in Tuen Shui-ming and Chong Chak-on). The court adopted the judge's lower starting point of 4½ years, reduced it by one-third for the guilty plea to 3 years, and further reduced it to 2 years and 9 months' imprisonment to reflect approximately 5 months already served in the Detention Centre's rigorous regime. Detention Centre order quashed and substituted with 2 years and 9 months' imprisonment.
Legal issues: Whether the Detention Centre order was wrong in principle and/or manifestly inadequate for trafficking in 13.02 kg of herbal cannabis · Appropriate substituted sentence after finding the original order wrong in principle
Outcome: Application for review allowed; Detention Centre order quashed and substituted with 2 years and 9 months' imprisonment
Cited by 16 cases · Cites 1 case
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CAAR 4/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL APPLICATION FOR REVIEW NO. 4 OF 2005 (ON APPEAL FROM DCCC NO. 646 of 2005) ____________________ BETWEEN
____________________ Before: Hon Stuart-Moore VP, Stock JA and McMahon J Date of Hearing: 20 January 2006 Date of Judgment: 20 January 2006 ______________________ J U D G M E N T ______________________ Stuart-Moore, VP (giving the judgment of the Court): 1.Leave was granted to the Secretary for Justice (the applicant) on 5 September 2005 to apply for a review of the sentence imposed on 19 August 2005 in the District Court by Judge Chua, pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221. The respondent, aged 23, pleaded guilty to a charge of trafficking in 13.02 kilogrammes of cannabis in its herbal form and was sentenced to be detained at a Detention Centre. Mr Saw SC, on the applicant’s behalf, submitted that this was wrong in principle and/or manifestly inadequate. 2.The trafficking in this large quantity of drugs took place on 27 April 2005 at premises on the 5th floor of an industrial building in San Po Kong and just outside the building. It was uncovered by surveillance officers who were posing as workmen. When the respondent was seen to be acting suspiciously just after he had left the building, he was intercepted and found to be carrying a bag containing just under a kilogramme of herbal cannabis. He made admissions to the effect that he was doing this for someone else. 3.The keys he was carrying were then taken from him and, on the information he provided to the officers, one of these was found to fit the cubicle which the respondent had rented at the premises. Inside the cubicle, the police found a box containing 13 blocks of herbal cannabis together with a vacuum-packing machine and other packaging equipment. Again, the respondent admitted his involvement saying that he was helping someone to deliver the drugs to another person and that it was his responsibility to rent the cubicle where they were stored. 4.Later, at Wong Tai Sin Police Station, the respondent said that he had been given $3,000 with which to rent the cubicle and that he received $400 for each block of cannabis he delivered. The vacuum-packing machine and the cannabis, according to the respondent, were delivered to him by an unknown male on the instructions of one ‘Ah Fu’ who, he said, had employed him three months earlier to deal with the drugs. This confession, explaining how, in a variety of ways, he had been employed by someone else to act as a trafficker in drugs by storing, packaging and supplying them, remains unsubstantiated. 5.This matter first came before the court on 5 August 2005. After the Summary of Facts had been agreed by the respondent, the judge was provided with the details of the respondent’s only previous conviction. This consisted of two offences which were unrelated to drugs and resulted in the respondent being placed on probation at the end of December 2001. The judge declined to hear mitigation on this occasion and she indicated that she proposed to obtain a Detention Centre Report. 6.The case was re-listed for sentence on 19 August 2005. The Detention Centre Report which had been duly obtained, dated 18 August 2005, indicated that the respondent was a suitable candidate for a Detention Centre. This assessment was based upon the respondent’s behaviour and attitude as well as his mental and physical fitness. 7.The salient factors emerging from the report were as follows:
8.It is apparent from these extracts from the report that the respondent had formed various triad links and had been leading a fairly irresponsible life-style up to the time of his arrest. On the more positive side, the report did, however, indicate that the probation order which the respondent had previously undergone had been satisfactorily completed and that the respondent’s father and step-mother continued to show concern for him. Overall, one of the more serious aspects arising from the report about the respondent, aside from his association with triads, is that his previous arrest for possessing cannabis shortly before his present arrest seems to have had no effect on him whatever. 9.The judge once again chose not to call upon counsel for the defence to mitigate having presumably decided in advance the means by which this case should be dealt. Instead, she engaged in the following dialogue with prosecuting counsel:
10.In her Reasons for Sentence, the judge briefly recounted the facts of the case before remarking that the respondent’s offence would have attracted a sentence of “4 years’ imprisonment upwards” for an amount in excess of 9 kilogrammes of cannabis resin, the more potent form of this drug, but that as this was over 13 kilogrammes of herbal cannabis, the respondent was “looking at” a starting point of 4½ years. The judge continued later by saying:
11.Section 4(2)(a) of the Detention Centres Ordinance, Cap. 239, provides that the period of detention for a person of the respondent’s age is “not less than 3 months” and “not more than 12 months”. 12.The sentencing guidelines for trafficking in cannabis in all its forms are to be found in Attorney General v Chan Chi-man [1987] HKLR 221. Roberts CJ, giving the judgment of the court said (at page 224), using phraseology which was echoed by the judge in the present case, that for “over 9,000 grammes” of cannabis resin, “4 years’ imprisonment upwards” would be appropriate after trial. The Chief Justice continued by dealing with the approach to the remaining two forms in which cannabis is generally found, saying (at pages 224-225):
13.It is plain, therefore, that when sentencing for an offence of trafficking in herbal cannabis, the starting point should normally be adjusted downwards, if at all, based upon the cannabis resin tariffs. This is to enable the court to take into account the fact that the concentration of tetrahydrocannabinol (THC) in cannabis resin is higher than it is in the herbal variety. Towards the end of the judgment, the court recognised that “better evidence” might become available as to the dangerous effects of cannabis. This, of course, in the light of a number of recent articles written by members of the medical profession, may yet be so. New scientific evidence has, however, been forthcoming to the effect that the concentration of THC to be found in cannabis resin is about “four times higher” than the average found in herbal cannabis. This is covered by the judgment in Attorney General v Tuen Shui-ming and Anor [1995] 2 HKCLR 129 at 135 and, accordingly, it was decided that the THC concentrations referred to in Chan Chi-man were no longer to be regarded as correct. Despite this, no adjustment was made to the guideline sentencing bands and the tariffs remained the same. Power VP, in Tuen Shui-ming (at page 133), indicated that:
14.Shortly after the decision on 9 June 1995 in Tuen Shui-ming, this court, on 31 October 1995, again made it clear in R v Chong Chak-on [1996] 1 HKC 152 at 164 that the sentence is “governed by the weight of the herbal cannabis”. In that case, where a 20-year sentence for trafficking in over 388 kilogrammes of herbal cannabis was upheld, the court said that the “THC content is relevant only insofar as it allows the court to take a more lenient view of herbal cannabis than it would of an equivalent amount of cannabis resin”. 15.The principle submission made by Mr Saw was that the Detention Centre order was wrong in principle as well as manifestly inadequate for a case concerning drugs in such a large quantity, being supplied on what was plainly a regular commercial basis. As such, the order failed to reflect the true gravity of the offence and was inappropriate in circumstances where a term of imprisonment was inevitable barring wholly exceptional circumstances of which, Mr Saw submitted, there were none. From a glance at the Detention Centre Report, the judge would have been aware that the respondent, who was almost 23½ at the time of sentencing, had a previous record, was on bail at the time of the offence for possession of cannabis and had formed triad associations while living apart from his family for two years. More importantly, this was a large quantity of drugs and the respondent was playing an important role in their distribution. 16.Mr Mughal, on the respondent’s behalf, submitted that the respondent had “pleaded guilty, saved some court time and had shown extensive co-operation upon his arrest”. He contended that as the judge had a discretion to put rehabilitation at the forefront of other sentencing considerations, and that, as the “short, sharp shock” approach was no soft option, we should not interfere with the sentence she had imposed. Mr Mughal indicated, in the course of his most able address to us, that he had told us everything which might have been said on the respondent’s behalf in mitigation if counsel had been given an opportunity to mitigate in the court below. 17.We have considered all the submissions made to us, but we are left in no doubt that the Detention Centre order was wrong in principle for a case as serious as this. There was nothing in this case to warrant any departure from the guidelines and we are left at a complete loss to understand why the judge saw fit to adopt the course she did. 18.In our opinion, a starting point of about 5 years, taking into account all the circumstances, including the fact that the respondent was on bail at the time of the offence, would have been appropriate but, having regard to the judge’s indication that she would have taken 4½ years, we propose to adopt the judge’s lower starting point. Reducing this by a third to reflect the respondent’s plea of guilty, the resulting sentence would be one of 3 years. Given that this is a review and that the respondent has served about 5 months in the rigorous regime of a Detention Centre, we propose to substitute a sentence of 2 years and 9 months’ imprisonment for the existing order. 19.Accordingly, we shall allow this application and substitute a sentence of 2 years and 9 months’ imprisonment for the Detention Centre order.
Mr D G Saw, SC, DDPP and Ms Grace Chan, SGC, of the Department of Justice, for the Applicant. Mr Hanif Mohamed Mughal, instructed by Messrs Edmund Cheung & Co., assigned by the Director of Legal Aid, for the Respondent. |
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